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This link will direct to section 8 search and seizure Charterpedia, provided by the Canadian government. This resource reviews the Charter, providing the purpose of each section, considerations related to, as well as case analysis. The headings and subheadings allow for easy dissection of information from this very thorough webpage. Section 8 specifically ensures the protection against unreasonable search and seizure for all Canadians.

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Provision

8. Everyone has the right to be secure against unreasonable search or seizure.

Similar provisions

While privacy is a central or core concern under section 8 of the Charter, section 7 also provides residual protection for privacy interests ( R. v. Mills, [1999] 3 S.C.R. 668, and especially at paragraphs 77-89, 94, 99 and 108, where the court embedded privacy analysis based on section 8 considerations within analysis of a section 7 principle of fundamental justice). The Canadian Bill of Rights contains no specific rights to privacy or to be secure against unreasonable search and seizure; but paragraph 1(a) protects a limited right not to be deprived of the enjoyment of property without due process.

Purpose

Section 8 protects people, not places, against unjustified intrusions on their privacy interests ( Hunter v. Southam Inc., [1984] 2 S.C.R. 145 at 159; R. v. Gomboc, [2010] 3 S.C.R. 211 at paragraphs 17, 75). As demonstrated by Hunter v. Southam, the protection of people includes corporations as legal persons. The purpose of section 8 is to prevent unjustified searches before they happen, not simply to determine after the fact whether they ought to have occurred in the first place ( Hunter v. Southam at page 160).

The values underlying the privacy interest protected by section 8 are dignity, integrity and autonomy ( R. v. Plant, [1993] 3 S.C.R. 281 at page 292). The protection section 8 provides for privacy ― personal, territorial and informational - is essential not only to human dignity, but also to the functioning of our democratic society. At the same time, section 8 permits reasonable searches and seizures in recognition that the state's legitimate interest in advancing its goals or enforcing its laws will sometimes require a degree of intrusion into the private sphere ( Goodwin v. British Columbia (Superintendent of Motor Vehicles), [2015] 3 S.C.R. 250 at paragraph 55).

The Supreme Court has suggested that the interests protected by section 8 may extend beyond those of privacy ( R. v. A.M., [2008] 1 S.C.R. 569 at paragraph 33, per Binnie J, citing Hunter v. Southam at page 159) but has not yet articulated the nature of any additional potential section 8 protections. That said, at a minimum, section 8 protections may overlap with protections generally recognized under other Charter rights. For example, in R. v. S.A.B., [2003] 2 S.C.R. 678, the Supreme Court decided that self-incrimination principles in relation to warrant powers to collect DNA evidence at sections 487.04 to 487.09 of the Criminal Code should be analyzed under section 8 of the Charter and that analysis need not turn to section 7 (see paragraphs 1, 33-35; see also Wakeling v. United States of America, [2014] 3 S.C.R. 549 at paragraphs 48-50).

Analysis

Section 8 involves a two-step analysis:

Has there been a "search" or a "seizure"?

Not every form of examination conducted by the government, and not every taking by the government, will constitute a 'search' or 'seizure' for constitutional purposes. An inspection is a search, and a taking is a seizure, where a person has a reasonable privacy interest in the object or subject matter of the state action and the information to which it gives access ( R. v. Tessling, [2004] 3 S.C.R. 432 at paragraph 18; R. v. Evans, [1996] 1 S.C.R. 8 at paragraph 11).

If so, was the search or seizure reasonable?

A search or seizure will be reasonable where it is (1) authorized by law; (2) the law itself is reasonable; and (3) the manner in which the search is carried out is reasonable ( R. v. Collins, [1987] 1 S.C.R. 265 at paragraph 23; Hunter v. Southam; R. v. Nolet, [2010] 1 S.C.R. 851 at paragraph 21; R. v. Shepherd, [2009] 2 S.C.R. 527 at paragraph 15).

Both steps of the inquiry call for a highly contextual analysis, with the result that different contexts yield different expectations of privacy which in turn give rise to different requirements at the second stage of the analysis. In general terms, determining the constitutional reasonableness of a search and seizure is "a function of both the importance of the state objective and the degree of impact on the individual's privacy interest" ( R. v. Rodgers, [2006] 1 S.C.R. 554; S.A.B.at paragraph 38; Hunter v. Southam at pages 159-60).

1. Has there been a search or seizure

(i) Types of state conduct to which section 8 may apply

The courts have defined " search" for section 8 purposes as any state activity that interferes with a reasonable expectation of privacy. This can include looking for things that are tangible or intangible, such as spoken words and electronic data ( R. v. Morelli, [2010] 1 S.C.R. 253), or scents ( Evans at paragraphs 12-21; R. v. Kokesch, [1990] 3 S.C.R. 3).

The interception and recording of a private communication should be considered a search in all circumstances, save where all parties to a conversation expressly consent to the recording ( R. v. Duarte, [1990] 1 S.C.R. 30 at pages 42-46).

A right to inspect documents as part of an administrative scheme set up by statute to regulate commercial and industrial activity would likely constitute a search ( Comité paritaire de l'industrie de la chemise v. Potash, [1994] 2 S.C.R. 406 at pages 440-441).

A " seizure" for section 8 purposes is the "taking of a thing from a person by a public authority without that person's consent" ( R. v. Dyment, [1988] 2 S.C.R. 417 at 431; R. v. Colarusso, [1994] 1 S.C.R. 20 at 58; R. v. Law, [2002] 1 S.C.R. 227 at paragraph 15). This includes situations in which a person is required to produce a thing (including information) pursuant to a state compulsion ( R. v. McKinlay Transport Ltd., [1990] 1 S.C.R. 627 at 642; Mills at paragraph 77; British Columbia Securities Commission v. Branch, [1995] 2 S.C.R. 3 at page 34; see also R. v. White, [1999] 2 S.C.R 417; R. v. Fitzpatrick, [1995] 4 S.C.R. 154; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425). The power to make copies of documents is analogous to a requirement for production of documents and constitutes a seizure within section 8 ( Comité paritaire at page 439).

In order to constitute a "seizure", a "taking" by the state need not be directly from the person whose rights are affected. For example, where a medical professional obtains a bodily sample for medical purposes, disclosure of the sample to police will amount to a "seizure" ( Dyment; R. v. Dersch, [1993] 3 S.C.R. 768; Colarusso at page 56). This is so whether the sample is provided pursuant to a police demand, request, or whether it is provided voluntarily. The fact that a person who has acquired lawful possession of information for their own purposes voluntarily discloses the information to the state does not vest in the state a delegated or derivative power to appropriate that information for the purposes of a criminal investigation ( R. v. Cole, [2012] 3 S.C.R. 34 at paragraph 67).

The section 8 protection against seizure does not apply to government action merely because those actions interfere with property rights. Rather, "there must be a superadded impact upon privacy rights occurring in the context of administrative or criminal investigation" ( Quebec (Attorney General) v. Laroche, [2002] 3 S.C.R. 708 at paragraph 53). Thus, a restraint order against property will constitute a seizure where it is issued for the ultimate purpose of investigation ( Laroche at paragraph 54).

Where the state has seized records, the Supreme Court has indicated that disclosure of those records to individuals outside of those to whom, or for purposes other than for which, they were originally divulged may interfere with a reasonable expectation of privacy ( Mills at paragraph 108; R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390 at paragraphs 28-30, 39-43; see also Wakeling at paragraphs 91-96 per McLachlin C.J. and paragraphs 122-125 per Karakatsanis J., dissenting; but see Wakeling at paragraphs 32-40 where Moldaver J. appears to endorse a plain meaning interpretation of s. 8 that would not generally capture the disclosure of information by the state).

(ii) "Totality of the circumstances" test

Whether or not state action has interfered with a reasonable expectation of privacy (so as to constitute a search or seizure) is to be determined on the basis of the totality of the circumstances. The "totality of the circumstances" test is one of substance, not form ( R. v. Edwards, [1996] 1 S.C.R. 128 at paragraph 45). Four lines of inquiry guide the application of the test ( Cole at paragraph 40; Tessling at paragraph 32):

1. an examination of the subject matter of the search;

2. a determination as to whether the claimant had a direct interest in the subject matter;

3. an inquiry into whether the claimant had a subjective expectation of privacy in the subject matter; and

4. an assessment as to whether this subjective expectation of privacy was objectively reasonable (Tessling at paragraphs 31-32; Gomboc at paragraphs 18, 78; Cole at paragraph 40; R. v. Patrick, [2009] 1 S.C.R. 579 at paragraph 27).

The totality of the circumstances test determines both the existence and extent of the reasonable expectation of privacy. If there is no reasonable expectation of privacy, the protections of section 8 are not engaged and the analysis ends there. If there is a reasonable expectation of privacy of any degree, section 8 will be engaged to prevent state interference except under the authority of a warrant or other reasonable law ( Cole at paragraph 9).

(a) The subject matter of the search

When identifying the subject matter of an alleged search, the court must not do so "narrowly in terms of the physical acts involved or the physical space invaded, but rather by reference to the nature of the privacy interests potentially compromised by the state action." This involves consideration of what the state activity may "tend to reveal" ( R. v. Spencer, [2014] 2 S.C.R. 212 at paragraphs 26, 31).

The nature of the privacy interest does not depend on whether, in the particular case, privacy shelters legal or illegal activity. The analysis turns on the privacy of the area or the thing being searched and the impact of the search on its target, not the legal or illegal nature of the items sought ( Patrick at paragraph 32; Spencer at paragraph 36).

The Supreme Court has identified three broad privacy interests protected by section 8: personal privacy, territorial privacy and informational privacy. The distinction between these categories provides a useful analytical tool but is not determinative of the analysis as, in a given case, the privacy interest may overlap the categories ( Tessling at paragraph 24; see also Gomboc at paragraph 19).

Personal privacy

Privacy of the person perhaps has the strongest claim to constitutional shelter because it protects, in particular, the right of individuals not to have their bodies touched or explored to disclose objects or matters they wish to conceal ( Tessling at paragraph 21) and is often at issue in criminal investigations when the state wishes to pursue invasive procedures such as drug testing and cavity searches.

The Supreme Court has repeatedly emphasized the close relationship between bodily privacy and human dignity (see e.g., Tessling at paragraph 21; R. v. Golden, [2001] 3 S.C.R. 679 at paragraphs 87 and 98-99; Dyment at 431-32; R. v. Pohoretsky, [1987] 1 S.C.R. 945 at 949; R. v. Stillman, [1997] 1 S.C.R. 607 at paragraph 42).

Territorial/spatial privacy

Territorial privacy has its origins in the notion that "the house of everyone is to him as his castle and fortress" ( Semayne's Case, [1558-1774] All E.R. Rep. 62 (1604), at 63). This has developed into a more nuanced hierarchy protecting privacy: in the home, being the place where our most intimate and private activities are most likely to take place ( Evans at paragraph 42; R. v. Silveira, [1995] 2 S.C.R. 297 at paragraph 140; R. v. Feeney, [1997] 2 S.C.R. 13 at paragraph 43); in diluted measure, in the perimeter space around the home ( Kokesch; R. v. Grant, [1993] 3 S.C.R. 223 ( Grant (1993) at pages 237, 241); R. v. Wiley, [1993] 3 S.C.R. 263 at 273); in commercial space ( Thomson Newspapers at 517-19; McKinlay Transport at 641ff); in private cars ( R. v. Wise, [1992] 1 S.C.R. 527 at 533; R. v. Mellenthin, [1992] 3 S.C.R. 615); in a school ( R. v. M. (M.R.), [1998] 3 S.C.R. 393, at paragraph 32); and even, at the bottom of the spectrum, a prison ( Weatherall v. Canada (Attorney General), [1993] 2 S.C.R. 872, at 877) ( Tessling at paragraph 22).

Such a hierarchy of places does not contradict the underlying principle that section 8 protects "people, not places", but uses the notion of place as an analytical tool to evaluate the reasonableness of a person's expectation of privacy ( Tessling at paragraph 22).

Informational privacy

In fostering the underlying values of dignity, integrity and autonomy, it is fitting that section 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual ( Plant at 293). Informational privacy has been defined as "the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others" ( Tessling at paragraph 23; see also Patrick, Gomboc, Cole, A.M.).

Informational privacy includes at least three conceptually distinct, though overlapping, understandings of what privacy is: privacy as secrecy; privacy as control and privacy as anonymity. Privacy as secrecy encompasses the expectation that information disclosed in confidence will be held in trust and confidence by those to whom it is disclosed. Privacy also encompasses a wider notion of control over, access to, and use of information. This aspect of privacy "derives from the assumption that all information about a person is in a fundamental way his own, for him to communicate or retain for himself as he sees fit" ( Spencer at paragraph 40). Privacy as anonymity permits individuals to act in public places but to preserve freedom from identification and surveillance. This conception of privacy is particularly important in the context of Internet usage ( Spencer at paragraphs 41-43). Because the Internet has exponentially increased both the quality and quantity of information that is stored about Internet users, and because users cannot fully control or even be fully aware of who may observe a pattern of online activity, it is by remaining anonymous that the user can in large measure be assured that the activity remains private ( Spencer at paragraph 46).

Privacy concerns in relation to information are at their strongest where aspects of an individual's identity are at stake, such as in the context of information "about one's lifestyle, intimate relations or political or religious opinions" ( Mills at page 81; Thomson Newspapers at 517; Branch at paragraph 62).

(b) Whether the claimant had a direct interest in the subject matter

In order to have standing to bring a claim under section 8, the state conduct at issue must implicate the claimant's personal privacy rights (as opposed to those of a third party) ( Edwards at paragraphs 43, 45-47; R. v. Marakah, 2017 SCC 59 at paragraph 12). In the s. 8 context, the Supreme Court sometimes equates the issue of standing with the existence of a reasonable expectation of privacy (see e.g., Marakah at paragraphs 54-55). In other cases, the Court appears to understand the issue of standing in the narrower sense described above, as a means of limiting arguments based on the constitutional rights of third parties (see e.g., Edwards at paragraph 34; R. v. Ferguson, 2008 SCC 6 at paragraph 61).

As an exception to the general rule that a Charter applicant bears the burden of proving the Charter infringement, the court may assume, for the purpose of considering the applicant's s. 8 challenge, any fact that the Crown has alleged or will alleged in the prosecution ( R. v. Jones, 2017 SCC 60 at paragraphs 32-33).

Where a person is a third party in a location where a search or seizure takes place ( e.g., a passenger in a stopped vehicle or a guest in a house), this factor may limit their privacy interest in the location and in its contents ( R. v. Belnavis, [1997] 3 S.C.R. 341 at paragraphs 22, 24; Edwards at paragraphs 45-47, 49). However, the intrusion on the privacy rights of a third party may be relevant to the question of whether the search was carried out in a reasonable manner, which arises at the second stage of the section 8 analysis ( Edwards at paragraphs 35-38; see "(b) If so, was the interference reasonable? " below).

For more discussion of standing under the Charter, see generally subsection 24(1) and subsection 52(1).

(c) Whether the claimant had a subjective expectation of privacy

When determining whether a claimant had a subjective expectation of privacy, "reasonableness" is not the issue ( Patrick at paragraph 37). The question is whether the claimant had, or is presumed to have had, an expectation of privacy in the subject matter of the search ( Patrick at paragraph 37; Jones at paragraphs 19-22). This is not a high hurdle. For example, in the case of information about activities taking place in a dwelling house, an expectation of privacy can be presumed in the claimant's favour ( Plant at paragraph 37; Gomboc at paragraph 25). Similarly, a subjective expectation of privacy can be inferred in text messages sent to a known recipient ( Jones at paragraph 15).

The subjective expectation of privacy is important but its absence should not be used too quickly to undermine the protection afforded by section 8 to the values of a free and democratic society. A person who fears their telephone is bugged may longer has a subjective expectation of privacy but does not necessarily forfeit the protection of section 8. Privacy is a normative rather than descriptive standard ( Tessling, paragraph 42).

(d) Whether the subjective expectation of privacy was objectively reasonable

The analysis of whether a subjective expectation of privacy is objectively reasonable is highly contextual and "can vary with the nature of the matter sought to be protected, the circumstances in which and the place where state intrusion occurs, and the purposes of the intrusion": ( Patrick at paragraph 38; Colarusso at 53; see also R. v. Buhay, [2003] 1 S.C.R. 631 at paragraphs 22, 23 and 24).

There is no definitive list of factors that must be considered in assessing the objective reasonableness of an expectation of privacy. The relevant case law, however, provides useful guidance in the form of a non-exhaustive list of factors that are potentially relevant ( Cole at paragraph 45).

Place where the alleged "search" occurred

Private dwellings, in contrast to other premises, carry heightened privacy expectations ( Kokesch at pages 16-18; Feeney at pages 43-45; see also R. v. Landry, [1986] 1 S.C.R. 145). The perimeter around these dwellings carries similar constitutional protection ( Plant at page 291; Wiley at 273; Grant (1993); Gomboc at paragraph 79).

Although police have an implied license to approach the door of a residence and knock for the limited purpose of communicating with the occupant, conduct going beyond the terms of the implied license ( e.g., attempting to "sniff" for marihuana or pushing the door open), intrudes on the reasonable privacy interest in the dwelling ( Evans at paragraph 15; R. v. MacDonald, [2014] 1 S.C.R. 37 at paragraphs 26-27).

This heightened expectation of privacy in private dwellings will be lessened in the context of administrative inspections where the dwelling also serves as the workplace in a regulated industry ( Comité paritaire at 424).

The public interest in maintaining an effective emergency response system ( i.e., 911 calls) is significant enough to merit some intrusion on a dwelling house resident's privacy interest ( R. v. Godoy, [1999] 1 S.C.R. 311 at paragraph 22).

Private offices also generally attract a high expectation of privacy ( R. v. Rao (1984), 12 C.C.C. (3d) 97 (Ont. C.A.), leave to appeal refused, [1984] 2 S.C.R. ix; Buhay at paragraphs 23-24).

Among commercial premises, the media are entitled to particularly careful consideration because of the importance of their role in a democratic society (see e.g., Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; R. v. National Post, [2010] 1 S.C.R. 477 at paragraph 31).

Similar care must be taken with respect to searches of legal offices in light of the fact that the reasonable expectation of privacy in solicitor-client privileged material is "invariably high", regardless of the context ([2015] 1 S.C.R. 401 at paragraph 38; see also Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney General); R. v. Fink, [2002] 3 S.C.R. 209; Maranda v. Richer, [2003] 3 S.C.R. 193; Canada (Attorney General) v. Chambre des notaires du Québec , [2016] 1 S.C.R. 336).

A person retains a limited, but still significant, expectation of privacy in a hotel room, public locker, or other place even though there exists a "master key" ( R. v. Wong, [1990] 3 S.C.R. 36; Buhay).

Travellers using public transportation maintain a reasonable expectation of privacy in their luggage ( R. v. Kang-Brown, [2008] 1 S.C.R. 456; R. v. Chehil, [2013] 3 S.C.R. 220).

Whether the subject matter was in public view

There can be no reasonable expectation of privacy in something that is knowingly exposed to the public, or to a section of the public, or abandoned in a public place ( Tessling at paragraph 40; see also R. v. Boersma, [1994] 2 S.C.R. 488; Stillman at paragraphs 62, 226; Evans at paragraph 50; Baron v. Canada, [1993] 1 S.C.R. 416, at 453; Dyment at 435; R. v. Monney, [ 1999] 1 S.C.R. 652 at paragraph 45; Patrick at paragraphs 27, 40, and 53; and Gomboc at paragraph 119).

However, the mere fact that a person enters a public space does not mean that the person expects to be personally identified and subjected to extensive surveillance ( Spencer at paragraph 44).

Control over / ability to regulate access to the subject matter of the search

Control over and ability to regulate access to the subject matter of the search are relevant factors in determining the objective reasonableness of a subjective expectation of privacy. However, control is not an absolute indicator of a reasonable expectation of privacy, nor is lack of control fatal to a privacy interest ( Marakah at paragraph 38). Even where "technological reality" deprives an individual of exclusive control over his or her personal information, he or she may yet reasonably expect that information to remain safe from state scrutiny ( Marakah at paragraph 41; Jones at paragraph 45; Cole at paragraph 54). For example, the fact that text messaging inherently involves the creation of a permanent record that the recipient could disclose to police does not negate a sender's reasonable expectation that the state will not intrude upon the electronic conversation absent such disclosure ( Marakah at paragraph 40).

Whether the subject matter had been abandoned

A person normally does not retain a reasonable expectation of privacy with respect to property or things, including informational content that have been voluntarily abandoned. The determination of whether a thing has been abandoned - i.e., whether a person has relinquished a privacy interest in it - will have to be determined on the particular facts of the case. In the case of garbage, for instance, abandonment will be a function of both location (where the garbage was left) and the intention of the person abandoning the garbage ( Patrick at paragraphs 54-5, 62).

Discarded bodily samples cannot be said to have been voluntarily abandoned if the person concerned is in custody or detained ( Stillman at paragraphs 59-64).

An item that is stolen is not, by virtue of that fact alone, abandoned. Although the owner would reasonably expect a certain degree of intrusion into the stolen item ( e.g., examination for evidence relevant to its theft or for reasons of safety), he or she does not lose all privacy interest in the object and retains a reasonable expectation that the police will not conduct a search for evidence to be used in a separate and unrelated investigation against the owner ( Law at paragraph 28).

Whether the subject matter was already in the hands of third parties and, if so, whether it was subject to an obligation of confidentiality

One may continue to have a reasonable expectation of privacy with respect to property or a thing even when it is no longer in one's possession ( Mills at paragraph 108; Colarusso at paragraph 74; Marakah at paragraph 37). Privacy interests in modern society include the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged ( Dyment at page 429; Mills at paragraph 108).

The doctor-patient relationship is characterized by a high degree of confidentiality. Bodily samples collected for medical purposes are subject to a duty to respect the privacy and dignity of the person and cannot generally be shared with police absent prior judicial authorization ( Dyment at paragraphs 28-30; Colarusso).

A client has a reasonable expectation of privacy in all documents in the possession of his or her lawyer, which constitute information that the lawyer is ethically required to keep confidential ( Lavallee at paragraph 35; Chambre des notaires at paragraph 35).

Records that are subject to inspection by members of the public at large cannot be said to be subject to an obligation of confidentiality ( Plant at paragraph 22).

The contractual and statutory framework, including any terms or provisions governing the disclosure of the information, may be relevant to whether there is a reasonable expectation of privacy. When dealing with a contract of adhesion in the context of a consumer relationship, caution must be exercised in determining the impact of the contract on the reasonableness of an expectation of privacy ( Spencer at paragraph 54; Gomboc at paragraphs 31-33, 94-95, 138-42). The principle that privacy is a "normative rather than a descriptive standard" must also be kept in mind ( Tessling, paragraph 42; Gomboc, paragraphs 34, 115; Spencer, paragraph 18; Jones, paragraphs 47-51).

Invasiveness of the technique or technology

In the context of personal privacy, the level of invasiveness is a function of the circumstances, including the duration of the search technique, whether there is penetration into the body, whether the technique causes pain or discomfort, and whether the search involves the removal of substances from the body ( Stillman at paragraphs 45-46; R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; R. v. Saeed, [2016] 1 S.C.R. 518 at paragraph 49).

A pat-down or frisk search, which may involve examination of a person's pockets but which does not involve the application of physical force or the removal of clothing, is relatively non-intrusive ( Cloutier v. Langlois, [1990] 1 S.C.R. 158). A strip search, however sensitively conducted, is highly intrusive. The most intrusive type of search is a body cavity search ( Golden; Saeed). For further discussion, see "Search incident to lawful arrest" below.

The forcible taking of bodily samples and dental impressions is highly invasive of personal privacy ( Pohoretsky at 949; Dyment at 436; Colarusso at 53; Stillman at paragraph 42; R. v. Grant, [2009] 2 S.C.R. 353 ( Grant (2009)) at paragraph 109). In general, police must have either consent or a warrant to seize such samples or impressions ( Stillman).

Where bodily samples are taken under a properly issued DNA warrant, however, the impact on physical integrity is "relatively modest". The techniques used (buccal swabs, blood samples obtained by pricking the surface of the skin, and the plucking of hairs) are not particularly invasive in the physical sense ( S.A.B. at paragraph 44).

In respect of individuals convicted of serious offences, the identifying information derived from DNA sampling is analogous to fingerprints, photographs and other non-intrusive identification measures ( Rodgers at paragraphs 35-44).

A penile swab is in some ways less invasive than the taking of dental impressions or the forceful removal of hair from an accused's body. Although the accused is required to expose a private area of his body to conduct the swab, the procedure is as a general rule quick, painless, and not penetrative. The information sought is the complainant's DNA and is not personal information to the accused ( Saeed at paragraphs 47-49).

In the context of technological surveillance tools, the sophistication of the technology involved, in terms of the quality of the information it yields, will be an important factor. Devices used to sense heat emanations from a house are sufficiently crude at this stage of their development that the information gathered by them is non-intrusive and mundane ( Tessling at paragraphs 54-55). Information obtained by tracking devices left in cars is, though relatively crude, sufficiently intrusive so as to infringe a reasonable expectation of privacy ( Wise at 534-538).

Surreptitious interception and recording of private communications constitutes a serious intrusion into the privacy rights of those affected ( Duarte; Wong at pages 47-49; R. v. Tse, [2012] 1 S.C.R. 531 at paragraph 17) and is generally only permissible subject to prior judicial authorization ( Duarte at pages 42-43; R. v. Fliss, [2002] 1 S.C.R. 535 at paragraphs 47-49; R. v. Pires; R. v. Lising, [2005] 3 S.C.R. 343 at paragraph 8).

Video surveillance without prior judicial authorization in a home, hotel room, or other place where there is a reasonable expectation of privacy will also constitute an unreasonable search or seizure ( Wong at pages 50-51).

Text messaging bears the hallmarks of traditional voice communication - it is intended to be conversational, transmission is generally instantaneous, and there is an expectation of privacy in the communication. Prospective, continuous police access to text messages from an investigative target's service provider is subject to the high standards for authorization of interception of communications under Part VI of the Criminal Code ( R. v. TELUS Communications Co., [2013] 2 S.C.R. 3 at paragraphs 1, 5, 32). By contrast, police access to historical text messages (those that have been sent and received or are no longer capable of reception) is not an "interception" and may be authorized pursuant to a production order as opposed to a wiretap ( Jones at paragraphs 74, 80).

Nature of the information

Personal computers, because of the vast amounts of information they contain - including intimate correspondence, the details of our financial, medical and personal situations, Internet browsing histories, as well as information that users cannot control and information that they may not be aware of or may have chosen to discard - attract a very high expectation of privacy ( Morelli at paragraph 105; R. v Vu, [2013] 3 S.C.R. 657 at paragraphs 24, 40-45).

Text messages are both private and discreet: receipt of the information is confined to the people to whom the text message is sent; service providers are contracted to confidentiality; no one else generally knows about the existence or contents of the message ( Marakah at paragraph 34). As such, electronic text conversations are capable of revealing a great deal of personal information (para. 37).

Internet subscriber information, by tending to link particular kinds of information to identifiable individuals, may implicate privacy interests relating not simply to the person's name or address but to his or her identity as the source or possessor of that information. A police request for subscriber information corresponding to specifically observed, anonymous Internet activity engages a high level of informational privacy ( Spencer at paragraphs 47, 51).

Commercial documents generally carry a lower or diminished expectation of privacy ( Branch at page 35; Plant at pages 293-294; 143471 Canada Inc. v. Quebec (Attorney General); Tabah v. Quebec (Attorney General), [1994] 2 S.C.R. 339 at pages 377-378), especially those documents required to be produced or maintained pursuant to a regulatory scheme ( Comité paritaire at pages 444-445). A reasonable expectation may nevertheless be found in commercial documents and section 8 is therefore capable of applying in this context (see e.g., Hunter v. Southam; McKinlay Transport; Thomson Newspapers; and Baron).

Information that has not been developed or created in a confidential context, and is accessible to the public for inspection such as publicly maintained computer records, might not carry a reasonable expectation of privacy (see e.g., Plant).

A demand by a police officer for production of a driver's license does not constitute a section 8 search. There is no intrusion on a reasonable expectation of privacy where a person is required to produce a licence, permit or other documentary evidence of a status or compliance with a legal requirement that is a lawful condition of the exercise of a right or privilege ( R. v. Hufsky, [1988] 1 S.C.R. 621 at pages 637-638; Mellenthin at page 622).

Context in which the search occurs

The context of the search, and the activity that brings a person into contact with the state, can have an impact on the person's reasonable expectation of privacy.

Privacy expectations are generally lower in relation to administrative searches or seizures in regulatory schemes where the purpose of the intrusion is to ensure compliance with the statute rather than the prosecution of criminal acts (see e.g., Comité paritaire; 143471 Canada Inc.; McKinlay Transport; Branch). This is because in a modern industrial society, it is generally accepted that many activities in which individuals can engage must nevertheless to a greater or lesser extent be regulated by the state to ensure that the individual's pursuit of his or her self-interest is compatible with the community's interest in the realization of collective goals and aspirations. In many cases, this regulation must necessarily involve the inspection of private premises or documents by agents of the state, as compliance can only be tested by inspection of the business premises and/or business records. It follows that there can only be a relatively low expectation of privacy in respect of premises or documents that are used or produced in the course of activities which, though lawful, are subject to state regulation as a matter of course Thomson Newspapers; Fitzpatrick; White; Branch).

This principle is not absolute, however. The reasonable expectation of privacy in relation to communications subject to solicitor-client privilege is invariably high, regardless of whether the context is criminal or regulatory ( Federation of Law Societies at paragraph 38; Chambre des notaires).

The degree of personal privacy expected at borders, where travellers expect to be searched, is lower than in other enforcement situations ( R. v. Simmons, [1988] 2 S.C.R. 495 at page 528; Monney at paragraph 34; R. v. Jacques, [1996] 3 S.C.R. 312 at paragraph 18).

The expectation of privacy is reduced in the school setting in relation to the responsibility of teachers and other school authorities to provide a safe environment and maintain order and discipline in the school ( M.(M.R.)).

Prisons carry a decreased expectation of privacy ( Weatherall; R. v. Conway, [1989] 1 S.C.R. 1659). However, the lowered expectation of privacy within a prison does not allow the seizure without a warrant of bodily samples taken as part of a medical examination ( R. v. Dorfer (1996), 104 C.C.C. (3d) 528 (B.C.C.A.)).

Relationship between the purpose for which the information was initially disclosed or collected and the purpose for which it is to be subsequently used or disclosed

Privacy is not an all or nothing right. It encompasses the reasonable expectation that private information will remain confidential to the persons to whom and restricted to the purposes for which it was divulged ( Mills at paragraph 108; Dyment at page 429; Colarusso at page 71). Accordingly, a person may have a residual and continuing privacy interest protecting against the subsequent use or disclosure - and potentially retention - of information that has been divulged for a specific or limited purpose ( Law at paragraph 23; Dyment at pages 432-435; Mills at paragraph 94; R. v. Dore (2002), 166 C.C.C. (3d) 225 (Ont. C.A.); Wakeling at paragraph 39).

Constitutional requirements cannot be avoided by employing one state agent for a purpose for which the prerequisites for search may not be as demanding and then allowing another agent attached to the law enforcement apparatus of the state to claim the fruits of that search "without regard to the rightly stringent prerequisites of searches for those [law enforcement] purposes" ( Colarusso at paragraph 42; R. v. Jarvis, [2002] 3 S.C.R. 757; R. v. Ling, [2002] 3 S.C.R. 814; Law at paragraph 23).

Where a government body has regulatory or administrative functions as well as the function of investigating penal offences under the regulatory or administrative statute, a shift in state action from regulatory or administrative inspections to penal investigations affects the applicable Charter standards. In particular, where the predominant purpose of a particular inquiry becomes the determination of penal liability, so as to engage the adversarial relationship between the regulated party and the state, officials must at that point relinquish the authority to use regulatory or administrative inspection powers. Instead, at this stage, the "full panoply" of Charter rights are engaged and officials are restricted to using investigative powers appropriate to the penal context, thus normally requiring judicial authorization ( Jarvis at paragraphs 88, 96-98; see also Ling). Penal investigators may, however, make use of materials validly obtained under regulatory or administrative inspection powers prior to the commencement of the offence investigation. Parallel regulatory/administrative inspections and penal investigations are permissible, provided that the penal investigators do not avail themselves of information obtained under regulatory/administrative inspection powers after the penal investigation has commenced ( Jarvis at paragraph 97).

In assessing whether the predominant purpose of an investigation is to determine the penal liability of an individual, regard must be had to all relevant factors that bear upon the nature of the inquiry ( Jarvis at paragraph 93). Apart from a clear decision to pursue a criminal investigation, no one factor is necessarily determinative in and of itself in this analysis. Even where there are reasonable grounds to suspect that an offence was committed, it will not always be true that the predominant purpose of the investigation is to determine the penal liability of the individual ( Jarvis at paragraph 89). A lawful regulatory search does not become unlawful or unreasonable simply because the officers also have the expectation that the search might uncover evidence of crime (see e.g., Del Zotto v. Canada, [1999] 1 S.C.R. 3; Jarvis at paragraph 90; Nolet at paragraphs 37-38).

When a state agent, in the course of carrying out his or her authorized regulatory duties, comes across clear evidence of a crime or wrongdoing relating to the very same matters he or she was required to investigate for compliance purposes, the state agent may pass that information on to the appropriate authorities for offence investigation without the need for further lawful authority ( Laroche at paragraph 84; R. v. D'Amour, (2002), 4 C.R. (6th) 275 (Ont. CA) at paragraph 63; Jarvis). These cases were distinguished in Cole on the basis that they all arose in heavily regulated environments. In contrast, a teacher has a reasonable and continuous expectation of privacy in the personal information on his work-issued laptop. Although the school board is legally entitled to inform the police of the discovery of contraband on the laptop, the police required a warrant to search the computer ( Cole at paragraphs 70-73).

A provincial law authorizing the use, for the purpose of an administrative roadside sanction scheme, of breath samples taken pursuant to Criminal Code powers to screen drivers for alcohol constitutes a distinct search for Charter purposes ( Goodwin at paragraphs 53-54).

(iii) Consent

It is possible for what would otherwise be an infringement of section 8 to be constitutional if the person concerned waives their constitutional right to privacy. For such waiver/consent to be valid, it must be fully informed and voluntary. To be fully informed, a person must be provided with sufficient information to make the preference meaningful ( R. v. Borden, [1994] 3 S.C.R. 145). For the consent to be voluntary, the person must have had a real choice in providing the purported consent (see Godbout v. Longueuil (City), [1997] 3 S.C.R. 844 at paragraph 72; Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at paragraph 98).

Consent for a search and seizure for one purpose does not necessarily allow for the intrusion on the same privacy interests for other purposes ( Mills at page 108; Dyment at page 429). Consent to take bodily samples will generally only be consent to use the sample for the specific purpose for which consent is given ( Borden at page 162). However, where no specific limits are placed by the police or the consenting party on the use to which a bodily sample is to be made, there may be no subsisting expectation of privacy protecting against the use of the sample in a later investigation that was not and could not reasonably have been anticipated by the police at the time the sample was taken ( R. v. Arp, [1998] 3 S.C.R. 339 at paragraphs 89-91). Consent to collect a bodily sample for medical purposes does not allow the police to use the sample for investigative purposes ( Dyment at page 431).

2. Was the search or seizure reasonable?

(i) Search under a warrant

Because the purpose of section 8 is to prevent unjustified searches before they happen, the default standard is a system of prior authorization. More specifically, the default standard has three elements: (1) prior authorization; (2) granted by a neutral and impartial arbiter capable of acting judicially; (3) based on reasonable and probable grounds to believe that an offence has been committed and there is evidence to be found at the place to be search.

The warrant granting power in a statute must involve a true grant of discretion to the decision-maker ( Baron at page 435; see also Kourtessis v. M.N.R., [1993] 2 S.C.R. 53) and must be specific in its focus.

The application for a search warrant must contain a full and frank disclosure of all material facts and not just those favourable to the state. The application, while being clear and concise, must avoid incomplete recitations of known facts, taking care not to invite an inference that would not be drawn or a conclusion that would not be reached if the omitted facts were disclosed ( Morelli at paragraphs 4, 44-60; R. v. Araujo, [2000] 2 S.C.R. 992 at paragraphs 46-47; R. v. Garofoli, [1990] 2 S.C.R. 1421).

A warrant to search a place does not by itself carry with it sufficient authority, under section 8 Charter principles, to further search a computer found within that place. Rather, a prerequisite for a valid computer search is explicit judicial authorization involving due consideration of the distinctive privacy concerns raised by such a search ( Vu).

(ii) Warrantless searches

A warrantless search or seizure is presumptively unreasonable ( Hunter v. Southam; Nolet at paragraph 21; Goodwin at paragraph 99). The party seeking to justify a warrantless search bears the onus of rebutting the presumption by establishing that the search was:

authorized by law;

the law itself is reasonable; and

the manner in which the search or seizure takes place is reasonable

( Collins at 278; R. v. Caslake, [1998] 1 S.C.R. 51, at paragraphs 10-11; Tessling at paragraph 18; R. v. Mann, [2004] 3 S.C.R. 59 at paragraph 36; Grant (2009) at paragraph 56; Shepherd at paragraph 15; Nolet at paragraph 21; but see Nolet at paragraph 46, upholding the warrantless search on the basis that the reasonableness of the law authorizing it had not been challenged).

(a) Authorized by law

Sources of lawful authority for section 8 purposes accepted by courts have so far included statutes, regulation and the common law. This is not to necessarily rule out other sources that meet the general criteria for being "law" (see, generally, John Mark Keyes, Executive Legislation (2nd Edition, 2010), Chapter. 1). There has not yet been judicial consideration of whether or to what extent recent developments on the "prescribed by law" requirement under section 1, which recognize the possibility that other instruments like policies or guidelines may be tantamount to "law" where certain requirements are met, are applicable in the section 8 context: see section 1 for further discussion of those developments.

Significant privacy intrusions generally cannot be implied from the authorizing law; authority must normally be specific and express (see R. v. Shoker, [2006] 2 S.C.R. 399 regarding legislation and Caslake regarding the common law). In some circumstances, courts may find implied authority for intrusions on diminished privacy interests ( Cole; M.(M.R.)).

Common law power of search incident to arrest

A search incident to a lawful arrest must be based on reasonable grounds to believe that the search is necessary for a valid objective related to the reasons for the arrest such as safety of the arrestee or officer, preservation of evidence from destruction, and the discovery of evidence that can be used in the prosecution of the arrestee ( Cloutier; Caslake at paragraphs 17, 48; Golden at paragraphs 92-95; Mann at paragraph 37; R. v. Clayton, [2007] 2 S.C.R. 725 at paragraphs 26, 29; Stillman at paragraphs 34-50; Nolet at paragraph 49). Search incident to arrest may not be conducted in an abusive manner ( Cloutier at 185; Stillman at 638).

The intrusiveness of a search is an important factor in assessing its reasonableness. For example, pat-down searches will generally be reasonable (see e.g., Cloutier), but an officer's decision to go beyond an initial pat-down and reach into the pocket of a suspect may be more intrusive than necessary and thus interfere with the suspect's reasonable expectation of privacy ( Mann at paragraph 49). Strip searches or highly invasive examinations, such as body cavity searches, will likely not be reasonable (see e.g., Golden; Vancouver (City) v. Ward, [2010] 2 S.C.R. 28). Strip searches incident to arrest may nevertheless be lawful and reasonable in some circumstances, but such searches should only be carried out where the police have reasonable and probable grounds to conduct the search for the purpose of discovering weapons or seizing evidence related to the offence for which the detainee was arrested and demonstrate an urgency for such a search being conducted in the field. The search must be conducted in a manner that interferes with the privacy and dignity of the person being searched as little as possible ( Golden at paragraphs 101-102; Ward at paragraph 65).

The taking of bodily samples and teeth impressions without a warrant is inconsistent with the common law power of search incidental to arrest ( Stillman at paragraph 49).

The search of an accused person's property in his possession at the time of arrest can be considered to be valid as a search incident to arrest provided the purpose of the search is related to the reasons for the arrest (see Nolet, where the search of a secret compartment in the cab of a truck's trailer, two hours after the driver's arrest for possession of contraband, was valid as a search incidental to arrest for possession of proceeds of crime, but the later inventory search of the cab was invalid as it was no longer incidental to arrest, but was undertaken pursuant to RCMP administrative procedures).

The search of a cell phone has the potential to be a much more significant invasion of privacy than the typical search incident to arrest ( R. v. Fearon, [2014] 3 S.C.R. 621 at paragraph 58). As a result, police officers will not be justified in searching a cell phone or similar device incidental to every arrest. Rather, such a search will comply with section 8 where: (1) the arrest is lawful; (2) the search is truly incidental to the arrest in that the police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable; (3) the nature and the extent of the search are tailored to the purpose of the search; and (4) the police take detailed notes of what they examine on the device and how it is searched. In respect of factor (2), the valid law enforcement purposes in this context are: (a) protecting the police, the accused, or the public; (b) preserving evidence; or (c) discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cell phone incident to arrest ( Fearon at paragraph 83).

Common law power of search incident to lawful investigative detention

Although there is no general power of detention for investigative purposes, police officers may detain an individual if there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that the detention is reasonably necessary on an objective view of the circumstances ( Mann). Police have a common law power to conduct searches incidental to investigative detention but for this search to be a justified use of police power, the officer must have reasonable grounds to believe that his safety or the safety of others is at risk ( Mann at paragraph 40; Clayton; MacDonald at paragraphs 31, 41). But see MacDonald, which leaves some question as to the precise meaning of this standard: compare especially paragraphs 31 and 41, which appear to affirm the standard in Mann, with paragraphs 39 and 44, which may suggest a higher standard (reasonable grounds to believe that an individual " is armed and dangerous" or that there is "an imminent threat to the safety of the public or police"; paragraphs 66 ff., per Moldaver and Wagner JJ., dissenting). To determine whether the officer's decision to search was reasonable, a court will examine the totality of the circumstances. The officer's decision cannot be justified on the basis of a vague or non-existent concern for safety, nor can the search be premised upon hunches or mere intuition ( Mann at paragraph 40; Clayton at paragraph 29).

Common law power to search in exigent circumstances

Warrantless search may be reasonable in some situations if exigent circumstances make it impracticable to obtain a warrant ( Grant (1993) at pages 239-242; Plant at page 292; see also Wiley). "Exigent circumstances" denotes not merely convenience but urgency, arising from circumstances calling for immediate police action to preserve evidence, officer safety of public safety ( R. v. Paterson, 2017 SCC 15 at paragraphs 32-33). Exigent circumstances will generally be held to exist if there is an imminent danger of the loss, removal, destruction or disappearance of the evidence if the search or seizure is delayed. While the fact that the evidence sought is believed to be present on a motor vehicle, water vessel, aircraft or other fast moving vehicle will often create exigent circumstances, no blanket exception exists for such conveyances (see e.g., Hunter v. Southam; Grant (1993); Wiley; and see Silveira, where entry into a dwelling house while awaiting the issuance of a warrant to prevent the destruction of evidence violated section 8). For situations involving emergency entries to protect life and to prevent death or serious injury, see Godoy, in which police entered a dwelling house without a warrant as a result of a 911 call. The Supreme Court did not squarely deal with the section 8 issue, but instead considered an analytical framework dealing with the common law/statutory polices duties which followed the structure of a section 8 analysis. The Court noted that the police have the authority to investigate a 911 call but said that whether the police can enter a dwelling house as part of that investigation would depend on the circumstances of each case. See also Tse, where the Court applied section 8 analysis in evaluating the reasonableness of the provisions of the Criminal Code governing warrantless wiretapping under exigent circumstances.

Common law power to use sniffer dogs

In the context of routine crime investigations, investigative detentions where there are reasonable grounds to detain ( Mann), in schools ( Kang-Brown) or in bus stations ( A.M.) - and presumably by extension in certain other locations - there exists, at common law, a police power to use sniffer dogs where police have a "reasonable suspicion" that evidence of an offence will be discovered ( Chehil; R. v. MacKenzie, [2013] 3 S.C.R. 250; Kang-Brown; A.M.).

Plain view doctrine

Officers may validly seize clear evidence of wrongdoing that is in plain view provided that the officers are otherwise lawfully engaged in the execution of their duties (see Mellenthin; Law; Belnavis; Boersma; Buhay at paragraph 37). The doctrine does not, however, provide a basis for conducting a wider-ranging search within closed or locked places for contraband or evidence once some evidence of wrong-doing is discovered within plain view and has been seized. A plain view seizure cannot form the basis for a "fishing expedition" ( Mellenthin). Even in the case of a search conducted incidental to a lawful arrest, the permissible ambit of the search and of any consequent seizures made without a warrant depends on an appropriate "link between the location and purpose of the search and the grounds for the arrest" ( Nolet at paragraph 49; see also Cloutier).

(b) Law itself is reasonable

Since individuals have different expectations of privacy in different contexts and with regard to different subject matters, it follows that the standard of review of what is "reasonable" in a given context must be flexible, if it is to be meaningful ( McKinlay Transport). A reasonable law is one that strikes a reasonable balance between the particular state interest that is pursued by the law and privacy ( Shoker; S.A.B. at paragraphs 42-43; McKinlay Transport at page 643; Comité paritaire at pages 422 and 424; Rodgers at paragraphs 35-44; see also Jarvis; Branch; Mann; Clayton; and Wakeling, at paragraphs 66 and 81). Warrantless search powers have been upheld as reasonable in a number of contexts including: administrative and regulatory searches (see e.g., McKinlay Transport; Comité paritaire; Thomson Newspapers); border searches ( Simmons; Monney; Jacques); and roadside searches ( Hufsky). See also the discussion of common law search powers, above.

Nature and purpose of the legislative scheme

The characterization of a search or seizure as criminal on one hand or administrative or regulatory on the other is relevant in assessing its reasonableness ( Goodwin at paragraph 60). The proper characterization of the search or seizure involves a contextual analysis. In addition to the nature of the regime generally, regard may be had for other relevant aspects of the search or seizure such as whether it is administered by a police officer and the severity and immediacy of the consequences flowing from the search or seizure ( Goodwin at paragraph 63).

Mechanism employed

The intrusiveness of a search or seizure on privacy interests is an important consideration. Generally speaking, a law authorizing a search or seizure should reflect the least intrusive means by which the state interest can be achieved (see e.g., McKinlay Transport; Comité paritaire; Goodwin at paragraph 65; Saeed; Chambre des notaires). A legislative provision that interferes with solicitor-client privilege more than is "absolutely necessary" to achieve the ends of the enabling legislation will be unreasonable for s. 8 purposes ( Lavallee at paragraph 36; Chambre des notaires at paragraphs 28, 82).

Another relevant consideration is the threshold on which the search or seizure may be conducted, and whether the power to search or seize is narrowly targeted ( Chehil at paragraph 28). See discussion of thresholds, below.

Availability of judicial oversight

An unreviewable, discretionary power of search and seizure would be contrary to section 8 ( Hunter v. Southam at 166; Tse at paragraph 82; Goodwin at paragraph 70). The right to privacy encompasses both protection against unreasonable search and seizure and the ability to identify and challenge such invasions. In some circumstances involving searches that are not subject to prior authorization, additional safeguards will be required to ensure the requisite level of transparency and accountability, and to help ensure that such powers are not being abused ( Tse at paragraphs 83-84; Fearon at paragraph 82). Such safeguards may include after-the-fact notice to the target of the search (see e.g., Tse; Chehil at paragraph 58) as well as record-keeping requirements ( Fearon at paragraph 82).

In addition to judicial review of the lawfulness of the search, section 8 may also require a mechanisms for review of the reliability of the findings, particularly where the consequences of a search or seizure follow automatically and immediately ( Goodwin at paragraph 71). A law imposing serious administrative sanctions on the basis of an unreliable breath screening test requires a mechanism for meaningful review of the accuracy of the test result in order to satisfy the section 8 reasonableness requirement ( Goodwin at paragraph 75).

Thresholds upon which a search may be authorized

" Reasonable grounds to believe" is the common standard in the Criminal Code, and most federal enactments, authorizing a search warrant in Canada.

"Reasonable grounds to believe" and "probable cause" as found in the Fourth Amendment to the American Constitution are identical standards ( Hunter v. Southam at pages 167-168) and equate with "reasonable and probable grounds" ( R. v. Debot, [1989] 2 S.C.R. 1140 at page 1166). "Reasonable grounds" is the equivalent of "reasonable and probable grounds" ( Baron at pages 446-447; Morelli at paragraphs 127-8, per Deschamps J., in dissent but not on this point).

Reasonable grounds can be based upon detailed "tips" furnished by a reliable informer ( Debot at pages 1168-1169; Plant at pages 296-297; see also Grant (1993); Wiley). Reasonable grounds can also be based on information provided in a 911 call, particularly where firearms posing a risk to public safety are the focus of the investigation ( Clayton at paragraphs 33-5).

The "may afford evidence" standard is not the same as the "possibility of finding evidence" standard that was rejected as too low in Hunter v. Southam. Rather, the "may afford evidence" standard, when coupled with a requirement of "credibly-based probability" that the things sought are likely to be found, achieves the standard that is required by section 8 ( Baron at 448-449).

The standard referred to as " reasonable suspicion" or " reasonable grounds to suspect" is to be contrasted with the higher standard of "reasonable grounds to believe".

"Reasonable suspicion" as opposed to "reasonable grounds to believe" is generally an insufficient basis upon which to conduct a search in a criminal investigation context ( Mann at paragraphs 34, 40). However, "reasonable grounds to suspect" has been held to be a constitutionally sufficient standard in some contexts:

in the Criminal Code's roadside screening regime (Hufsky; Clayton);

for border searches in the customs context (Simmons; Jacques; Monney at paragraph 34);

some searches using sniffer dogs (Kang-Brown; A.M.; Chehil; MacKenzie).

Factors the Court has considered in assessing the constitutional sufficiency of the reasonable suspicion standard for certain types of searches include the minimally intrusive nature of the particular type of search, a relatively low expectation of privacy, a narrowly targeted objective, the effectiveness of the investigative technique, the presence of safeguards against abuses of the power, and the fact that inappropriate conduct by the police can be addressed under the "reasonableness of the search" component of the section 8 framework if necessary ( Kang-Brown at paragraphs 24-25, per Binnie J., paragraphs 159-169, per Deschamps J., and paragraphs 243-244, per Bastarache J.; A.M. at paragraphs 77-89, per Binnie J.).

In some cases arising in the administrative or regulatory context, the Court has accepted as reasonable laws authorizing searches or seizures on a broader threshold of relevance (see e.g., McKinlay Transport at paragraph 35: requirement to produce, for audit purposes, information that may be relevant to the filing of an income tax return; Comité paritaire: power to access a premises of employment and to inspect records relevant to determining an employer's compliance with regulations governing working conditions). The relevance standard is commonly used for regulatory or administrative inspection powers in federal enactments.

(c) Was the search carried out in a reasonable manner?

Searches or seizures conducted pursuant to reasonable lawful authority can, nevertheless, be found to limit section 8 if the search or seizure is carried out in an unreasonable manner ( R. v. Genest, [1989] 1 S.C.R. 59; R. v. Cornell, [2010] 2 S.C.R. 142). The manner will be reasonable if the search is no more intrusive than is reasonably necessary to achieve its objectives ( Vu).

The reasonableness of a search executed pursuant to a warrant will be judged based on whether "the search overall, in light of the facts reasonably known to the police, was reasonable" ( Cornell at paragraph 31).

It is not generally a constitutional requirement that a warrant spell out in advance the manner in which a computer is to be searched. Rather, the manner search is generally reviewed after the fact. In circumstances where the manner of search goes beyond the purposes for which the warrant was issued ( e.g., to search for evidence of an unrelated crime) the search may be unreasonable for Charter purposes ( Vu at paragraphs 53-55).

3. Additional considerations

(i) Interaction between section 8 of the Charter and section 8 of the Privacy Act

The privacy protection offered by the Charter and the Privacy Act can overlap but differences in purpose and scope between the two regimes exist and ought not to be overlooked. Compliance with one regime does not remove the need for compliance with the other. Section 8 of the Charter may constrain at least some of the various exceptional disclosures permitted under subsection 8(2) of the Privacy Act.

(ii) Interaction with section 1 of the Charter

In a number of cases, the Supreme Court has suggested that limits on section 8 rights are unlikely to be justified under section 1 of the Charter given the overlap between the reasonableness standard under section 8 and the minimal impairment analysis under the section 1 test ( Lavallee at paragraph 46, per Arbour J.; Grant, (1993) at 241; Thomson Newspapers, per Wilson J.; Lessard, per La Forest J.; Baron,per Sopinka J.; Chambre des notaires at paragraphs 89-91).

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8. Everyone has the right to be secure against unreasonable search or seizure. While privacy is a central or core concern under section 8 of the Charter, section 7 also provides residual protection for privacy interests ( R. v. Mills, [1999] 3 S.C.R.

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Article 2: Exclusion of Evidence in Canada

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Article 2: Exclusion of Evidence in Canada

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This Charterpedia link directs to section 24(2), Exclusion of Evidence. This section is commonly referred to hand in hand with section 8. If section 8 search and seizure rights are found to be infringed upon, the evidence in a case may be excluded, pursuant to section 24(2).

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Provision

24. (2) Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

Similar provisions

There is no similar provision in the Canadian Bill of Rights or in the American Bill of Rights.

Purpose

The purpose of section 24(2) is to maintain the good repute of the administration of justice. Section 24(2) looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. This inquiry is an objective one, which asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute ( R. v. Grant, [2009] 2 S.C.R. 353 at paragraph 67-68).

The focus of section 24(2) is not only long-term, but is also prospective and societal. Section 24(2) starts from the proposition that the fact of the Charter breach means damage has already been done to the administration of justice and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. Further, the section is not aimed at the impact of state misconduct upon the particular criminal trial, such as punishing the police or providing compensation to the accused, but rather at the broad impact of admission of the evidence on the long-term repute of the justice system ( R. v. Le, [2019] 2 S.C.R. 692 at paragraph 140; Grant, supra at paragraphs 69-70).

Analysis

1. Prerequisites to a remedy

There are three preconditions to the remedy of exclusion under section 24(2):

1. The applicant's rights or freedoms as guaranteed by the Charter must have been unjustifiably limited or denied;

2. The evidence must have been obtained in a manner that unjustifiably limited or denied a guaranteed right or freedom; and

3. Having regard to all the circumstances, the admission of the evidence in the proceedings must be capable of bringing the administration of justice into disrepute (Le, supra; Grant, supra; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Manninen, [1987] 1 S.C.R. 1233; R. v. Fliss, [2002] 1 S.C.R. 535).

Note that the first two preconditions need not both favour exclusion in order for a court to conclude that the admission of the evidence would bring the administration of justice into disrepute: "it is the sum, and not the average" of the two which guides the inquiry ( Le, supra at paragraph 141).

2. Nature of the provision

Like section 24(1), section 24(2) of the Charter is a remedial provision. It is not an "independent source of Charter rights" but merely provides a remedy for their breach ( R. v. Terry, [1996] 2 S.C.R. 207).

This provision does not provide an automatic exclusionary rule for unjustifiable limits to the Charter ( R. v. Strachan, [1988] 2 S.C.R. 980). While often characterized as a question of exclusion, the focus of the provision is on the admission of the evidence ( Le, supra at paragraph 139). Section 24(2) obliges law enforcement authorities to respect the exigencies of the Charter and precludes improperly obtained evidence from being admitted when it impinges on the fairness of the trial ( R. v. Burlingham, [1995] 2 S.C.R. 206 at paragraph 25). Section 24(2) is "not a remedy for police misconduct" ( Collins, supra), and thus is not designed to discipline the police. However, police conduct is a factor to be considered in determining whether the admission of the evidence would bring the administration of justice into disrepute ( Grant, supra at paragraphs 72-75; R. v. Harrison, [2009] 2 S.C.R. 494 at paragraphs 37-42; Strachan, supra), as is seen further below.

3. Procedure for seeking a remedy

Although there may not be one single procedure for seeking a section 24(2) remedy, the practice of giving early notice to the Crown that section 24(2) will be invoked, discussed in decisions such as R. v. Kutynec (1992), 12 C.R. (4th) 152(Ont. C.A.), R. v. Loveman (1992), 8 O.R. (3d) 51 (Ont. C.A.) and R. v. Dwernychuk (1992), 77 C.C.C. (3d) 385(Alta. C.A.), appears to be appropriate. Note, however, that the rules are not intended to be treated as inflexible, and see the statement in Kutynec, supra expressing "reluctance to propound a detailed judge-made rule to cover all Charter motions" (at paragraph 38).

Indeed, as noted by Doherty J.A. in Loveman, supra, a trial judge must be able to control the trial proceedings to ensure fairness to all parties and preserve the integrity of the trial process. While, in an appropriate case, this may include the refusal to entertain a section 24(2) application due to insufficient notice, where a Charter right is at stake a trial judge will be reluctant to foreclose an inquiry into an alleged violation ( Loveman, supra at paragraph 7). In Loveman, it was ultimately found that the trial judge should have allowed the accused to bring the section 24(2) application even though Crown counsel had not received notice prior to trial (See also R. v. Pelletier (1995), 97 C.C.C. (3d) 139 (Sask.C.A.)).

Note that orders excluding evidence should be final, since revisiting such a decision over the course of a trial would interfere with the accused's ability to know the case to meet ( R. v. Cole, [2012] 3 S.C.R. 34 at paragraphs 101-104).

4. Onus and standard of proof

The phrase "if it is established" places a burden of persuasion on the applicant that is discharged on the standard of a balance of probabilities. It rests with the applicant to prove on a balance of probabilities that a Charter right has been unjustifiably limited before being entitled to the remedy of exclusion under section 24(2) ( Collins, supra). The onus in relation to individual issues, however, may shift to the Crown. For instance, in applications based on a section 10(b) Charter violation, once the denial of the right to counsel is established, the onus will shift to the Crown to show that the accused would have acted in the same manner had the section 10(b) violation not occurred ( R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Harper, [1994] 3 S.C.R. 343).

The onus of proof on whether the admission of evidence would bring the administration of justice into disrepute rests with the party opposing admission of the evidence ( Collins, supra).

5. "Obtained in a manner..."

It is not necessary that there be a strict causal nexus between the limitation of the Charter and the obtaining of evidence before a remedy may be granted under section 24(2) ( Strachan, supra; Harper, supra; Burlingham, supra). In Strachan, supra, the accused had argued, among other things, that his right to counsel under section 10(b) had been denied and that evidence of drugs and drug-related paraphernalia was properly excluded by the trial judge under section 24(2) of the Charter. Dickson C.J. ruled that the phrase "obtained in a manner" should not be interpreted to impose a strict causal nexus between the Charter limit and the evidence sought to be excluded. Indeed, in that case it was held that imposing a strict causal requirement would effectively preclude from section 24(2)'s application much of the real evidence obtained following an unjustifiable limit of the right to counsel (section 10(b)); this is because there is often no direct causal relationship between the section 10(b) limit and the real evidence obtained in the context of a valid search or arrest; there will only be a nexus to the section 10(b) limit where the evidence in question is derivative, obtained as a direct result of a statement or other indication made by the accused ( Strachan at paragraph 43). That being said, as explained by Wilson J. for a unanimous Court in R. v. Black, [1989] 2 S.C.R. 138, Strachan should not be taken to preclude courts' consideration of causal connection where it is clearly present and the evidence obtained is clearly derivative (paragraph 42). Rather, the intention was instead to establish a broader test than "causal connection" where the effect, otherwise, would be to exclude from consideration under section 24(2) much of the real evidence obtained after a section 10(b) limit or the unjustifiable limit of another Charter right where causal nexus would be unlikely.

Similarly, while a temporal link between the unjustifiable Charter limit and the discovery of evidence figures prominently in the assessment of whether the limit occurred in the course of obtaining the evidence (particularly where the Charter limit and the discovery of evidence occur in the course of a single transaction), the presence of a temporal connection is not determinative. "Situations will arise where evidence, though obtained following the unjustifiable limit of a Charter right, will be too remote from the violation to be 'obtained in a manner' that infringed the Charter": Strachan, supra at 1005-6; R. v. Grant, [1993] 3 S.C.R. 223, [hereinafter Grant (1993)].

Instead, what is required is an examination of the "entire relationship" between the evidence and the unjustifiable Charter limit. This examination should include consideration of whether a temporal link existed, as well as an evaluation of the strength of the connection between the impugned evidence and the limit ( R. v. Goldhart, [1996] 2 S.C.R. 463). A connection that is merely "remote" or "tenuous" will not suffice ( R. v. Wittwer, [2008] 2 S.C.R. 235, at paragraph 21; Goldhart, supra at paragraph 40).

With regard to evidence in the form of statements, in considering whether a statement is tainted by an earlier unjustifiable Charter limit, the courts have adopted a purposive and generous approach. Pursuant to this approach, the statement will be seen as tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct ( Wittwer, supra at paragraph 21; Strachan, supra at 1005). The required connection between the limit and the subsequent statement may be "temporal, contextual, causal or a combination of the three" ( Wittwer, supra at paragraph 21; Plaha, supra at paragraph 45). Consideration of what evidence to exclude should begin with the evidence that is most proximate to the unjustifiable Charter limit and then work towards evidence that is more remote. There may be times when more remote evidence might not be admitted if its admission would have the same effect as admitting the most proximate evidence ( Burlingham, supra).

6. Test of exclusion: would admission of the evidence be capable of bringing the administration of justice into disrepute?

This is the final precondition (see (iii) above under Prerequisites to a Remedy) to the remedy of exclusion under section 24(2). In Grant, supra, the Supreme Court adopted a new, more flexible approach to the exclusion of evidence under section 24(2) and moved away from the framework which had previously been set out in Collins, supra and R. v. Stillman, [1997] 1 S.C.R. 607.

Pursuant to Grant, supra, whether the admission of evidence obtained in an unjustifiable limit of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by section 24(2), adopting a long-term, forward-looking and societal perspective. Specifically, courts must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

1. the seriousness of the Charter-infringing state conduct;

2. the impact of the breach on the Charter-protected interests of the accused; and

3. society's interest in the adjudication of the case on its merits (Grant, supra at paragraph 71).

These concerns can be said to have evolved from the considerations articulated in Collins, supra, which were as follows: (a) fairness of the trial; (b) seriousness of the violation; and (c) effect of exclusion.

The court's role on a section 24(2) application is to balance the assessments under each of these lines of inquiry, which encapsulate consideration of "all the circumstances" of the case, in order to determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute ( Grant, supra at paragraphs 71, 85; R. v. Mian, [2014] 2 S.C.R. 689 at paragraph 88). Note that the question "disrepute in whose eyes?" is answered by examining the reactions of a reasonable person, "dispassionate and fully apprised of the circumstances of the case". A reasonable person is is "usually the average person in the community, but only when that community's current mood is reasonable" ( Collins, supra at 282, or paragraph 33 QL; R. v. Calder, [1996] 1 S.C.R. 660 at paragraph 34).

The applicant must establish that the conduct of the government actors is so unacceptable that the "admission of evidence obtained in such a manner would tend to bring the administration of justice into disrepute" ( Burlingham, supra at paragraph 75) in the sense of "diminishing the esteem" in which the public holds the administration of justice ( Goldhart, supra at paragraph 27). For example, for the police to lie or deliberately mislead individuals with respect to their Charter rights is "fundamentally unfair and demeaning of those Charter rights". To countenance such government conduct would likely bring the administration of justice into disrepute ( R. v. Cook, [1998] 2 S.C.R. 597 at paragraph 60).

LeDain J. per the minority in R. v. Therens, [1985] 1 S.C.R. 613 had contended that the test for exclusion is lower than the community shock test set out in the pre-Charter confessions case of Rothman v. The Queen, [1981] 1 S.C.R. 640. This was authoritatively confirmed in Collins, supra. See also R. v. Harrer, [1995] 3 S.C.R. 562 where courts were found to have a common law discretion to exclude evidence whose admission would render a trial unfair even though its admission would not shock the community's conscience.

(i) Seriousness of the Charter-infringing state conduct

Courts must assess whether admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. As a general proposition, the more severe or deliberate the state conduct that led to the unjustifiable Charter limit, the greater the need for the courts to dissociate themselves by excluding evidence linked to that conduct in order to preserve public confidence in, and ensure state adherence to, the rule of law ( Grant, supra at paragraph 72; Harrison, supra at paragraphs 37-42; R. v. Elshaw, [1991] 3 S.C.R. 24; Burlingham, supra). The more serious the limit, the more likely it is that the fairness of the trial will be affected, particularly where it results in conscripting the accused to incriminate himself ( Elshaw, supra; Burlingham, supra).

This inquiry requires an evaluation of the seriousness of the state conduct that led to the unjustifiable limit. The concern is not to punish the police or to deter Charter limits, but instead to preserve public confidence in the rule of law and its processes. As stated in Grant, supra, "[i]n order to determine the effect of admission of the evidence on public confidence in the justice system the court...must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter" (at paragraph 73).

Extenuating circumstances (i.e. whether the police conduct was motivated by urgency and/or to prevent the loss or disappearance of evidence) may attenuate the seriousness of the Charter breach ( R. v. Silveira, [1995] 2 S.C.R. 297; Strachan, supra). Similarly, "good faith" on the part of the police will also reduce the need for the court to disassociate itself from the police conduct ( Grant, supra at paragraph 75; R. v. Hamill, [1987] 1 S.C.R. 301; R. v. Sieben, [1987] 1 S.C.R. 295; R. v. Duarte, [1990] 1 S.C.R. 30; R. v. Simmons, [1988] 2 S.C.R. 495; R. v. Colarusso, [1994] 1 S.C.R. 20; Silveira, supra). While good faith is not in itself determinative, it is certainly an important consideration in the decision whether to admit evidence obtained contrary to the Charter ( R. v. Jacoy, [1988] 2 S.C.R. 548; Hamill, supra; R. v. Wong, [1990] 3 S.C.R. 36; R. v. Wiley, [1993] 3 S.C.R. 263; Colarusso, supra; R. v. Evans, [1996] 1 S.C.R. 8 [hereinafter Evans (1996)].

However, police good faith, in the sense of an honest belief, does not mean that any honest belief, however unreasonable, will preclude the rejection of evidence under section 24(2) ( R. v. Harris, (1987), 35 C.C.C. (3d) 1 (Ont. C.A.)). Further it is clear that actual ignorance of Charter standards must not be rewarded or encouraged, and that negligence or wilful blindness cannot be equated with good faith ( R. v. Genest, [1989] 1 S.C.R. 59 at 87; R. v. Kokesch, [1990] 3 S.C.R. 3 at 32-33; R. v. Buhay, [2003] 1 S.C.R. 631 at paragraph 59; Grant, supra at paragraph 75). Note that the absence of bad faith does not constitute a positive finding of good faith ( Le, supra at paragraph 147). Rather, to be characterized as good faith it is necessary to demonstrate that the police "conducted themselves in a manner consistent with what they subjectively, reasonably, and non-negligently believed to be the law" ( Le, supra at paragraph 147). The sophistication of the police actor may also be relevant in some circumstances. For example, a specialized cyber-crime unit would be expected to be aware of the unique and heightened privacy interests in computers, and of the fact that a third party cannot waive another party's Charter rights ( R. v. Reeves, [2018] 3 S.C.R. 531 at paragraph 62).

An important consideration here is also whether the unjustifiable limit was "part of a larger pattern of disregard for Charter rights" ( Strachan, supra at paragraph 50), including where a police force's standard procedures are ill-conceived ( R. v. G.T.D. 2017 ABCA 274, dissenting reasons cited with approval at [2018] 1 S.C.R. 220). Indeed, evidence that the Charter-infringing conduct was part of a pattern of abuse will generally tend to support exclusion ( Grant, supra at paragraph 75). For instance, evidence of racial profiling will go directly to the seriousness of police conduct and the absence of good faith ( Le, supra at paragraph 78). Dangerous and erroneous police perceptions of the reach of police powers or the propriety of questionable practices must be emphatically rejected. Judicial acquiescence in such conduct by the reception of evidence obtained through that conduct would bring the administration of justice into disrepute ( R. v. Simpson, (1993) 12 O.R. (3d) 182 (Ont. C.A.); R. v. Gray (1993), 81 C.C.C. (3d) 174 (Man. C.A.); R. v. Innocente (1992), 113 N.S.R. (2d) 256 (N.S.C.A.)).

Unjustifiable limits have also been condemned, and the remedy of exclusion has followed, where the Court has found that the conduct in question was "deliberate", involved a "flagrant breach", or was in "blatant disregard" of Charter guarantees ( R. v. Manninen, supra; Therens, supra; Collins, supra; R. v. Pohoretsky, [1987] 1 S.C.R. 945; R. v. Dersch, [1993] 3 S.C.R. 768). Such a remedy has even been found to apply in the extradition context, where the Supreme Court of Canada has found that an extradition judge may exclude evidence under section 24(2) if it was gathered by the foreign authorities in such an abusive manner that its admission to the committal hearing would be unfair under section 7 of the Charter ( United States of America v. Shulman, [2001] 1 S.C.R. 616 at paragraph 56; United States of America v. Ferras, [2006] 2 S.C.R. 77 at paragraph 60; United States of America v. Anekwu, [2009] 3 S.C.R. 3 at paragraph 21). Note that, even where there was no wilful disregard for Charter rights, a significant departure from the standard of conduct expected of police will go to the seriousness of state conduct ( R. v. Taylor, [2014] 2 S.C.R. 495 at paragraph 39 ). Misleading testimony by police at trial can also be relevant to the first Grant factor ( Mian, supra at paragraph 88).

It is worth noting that an unjustifiable limit may not be "flagrant" when police rely upon ostensible statutory authority to search without a warrant ( Grant (1993), supra; R. v. Plant, [1993] 3 S.C.R. 281; Wiley, supra), or where the need for or specific requirements relating to a warrant is the subject of a "grey area" of conflicting caselaw ( Cole, supra at paragraph 86; R. v. Vu, [2013] 3 S.C.R. 657 at paragraph 70 ; R. v. Aucoin, [2012] 3 S.C.R. 408 at paragraph 50). This principle is not meant to encourage police to resort to warrantless searches where there is a legal grey area; however, evidence that police's view of the law was reasonable helps bolster the argument that the search can be supported under the first Grant factor ( R. v. Spencer, [2014] 2 S.C.R. 212 at paragraph 77).

However, once the illegality of the search power is judicially clarified, it is extremely difficult to rely upon "good faith" in the execution of the search based on that power ( Silveira, supra).

Trivial misconduct and "minor police stupidity" will not merit the remedy of exclusion: see the minority reasons of Dickson C.J.C. in R. v. Greffe, [1990] 1 S.C.R. 755. Also worthy of consideration under this factor is whether the limit was inadvertent, or merely of a technical nature ( Greffe, supra, per minority). Excluding evidence essential to substantiate the charge where the limit of the Charter was trivial or, at least not serious, can bring the administration of justice into disrepute ( Genest, supra; R. v. Belnavis, [1997] 3 S.C.R. 341). Nevertheless, where the unjustifiable limit involved could not be characterized as trivial, the evidence in dispute may still be admitted because excluding it would occasion greater disrepute to the justice system than allowing for its admission ( Simmons, supra; Jacoy, supra; Evans (1996), supra). This was the view of Southin J.A. who, in R. v. Evans, [1988] 45 C.C.C. (3d) 523 (B.C.C.A.) [hereinafter Evans (1988)], stated that nothing could be more detrimental to the repute of the administration of justice "than letting the accused, a self-confessed killer, go free to kill again on the basis of such infringements" (at 564). Note, however, that McLachlin J. [as she then was], on appeal, ruled that the admission of the accused's statements in the circumstances of the case would bring the administration of justice into disrepute: R. v. Evans, [1991] 1 S.C.R. 869 at paragraphs 63-65.

In addition, in the context of a section 8 violation, a lack of reasonable and probable grounds is an indicator of seriousness of state conduct. Conversely, the presence of "reasonable and probable grounds" reduces the seriousness of an unjustifiable Charter limit based on the absence of a search warrant, and affects the determination of whether to exclude the evidence under section 24(2) of the Charter ( Belnavis, supra; R. v. Côté, [2011] 3 S.C.R. 215; R. v. Fearon, [ 2014] 3 S.C.R. 621 at paragraph 96). Similarly, a lack of "exigent circumstances," where these are the ostensible justification for a warrantless search, will be an indicator of seriousness ( R. v. Paterson [2017] 1 S.C.R. 202 at page 47).

Overall, the admissibility of the seized evidence must be determined on a case-by-case basis, even in the case of a serious unjustifiable limit, such as the unlawful entry into a home ( Silveira, supra; R. v. Feeney, [1997] 2 S.C.R. 13). The seriousness of the rights limitation, when combined with the effect on the administration of justice of regularly admitting such evidence, can result in the exclusion of independently existing real evidence (Greffe, supra; Kokesch, supra).

(ii) Impact of breach on Charter-protected interests of the accused

The second inquiry requires an evaluation of the extent to which the unjustifiable limit actually undermined the interests protected by the right infringed. The impact of a given Charter limitation may range from fleeting and technical to profoundly intrusive. Generally, "[t]he more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute" ( Grant, supra at paragraph 76). To determine the seriousness of the limitation on the accused's Charter-protected interests, it is necessary to look to the interests engaged by the limited right, and then examine the degree to which the limitation impacted on those interests ( Grant, supra at paragraph 77).

For example, an unreasonable search contrary to section 8 of the Charter may impact on the protected interests of privacy, and more broadly, human dignity. An unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans their dignity, is more serious than one which does not ( Grant, supra, at paragraph 78; Paterson, supra at paragraph 49). It should also be recalled here that a "violation of a person's body is much more serious than that of his office or even of his home" ( Pohoretsky, supra at paragraph 5). The search of a personal computer is one of the most intrusive invasions of privacy that can be imagined ( R. v. Morelli, [2010] 1 S.C.R. 253 at paragraph 105; Reeves, supra, at paragraph 66).

The impact on an accused person's privacy interest in an electronic conversation is the same whether that conversation is illegally accessed through the accused's own device or through the device of a co-interlocutor. The fact that control of access to an electronic conversation is shared by two or more participants does not negate the impact of an illegal search and should not, by itself, favour admission of the evidence. To conclude otherwise would be to reintroduce at the section 24(2) stage the risk analysis that has been rejected under section 8 of the Charter ( R. v. Marakah, [2017] 2 S.C.R. 608 at paragraphs 68-69).

Physical vulnerability can also be a consideration. Where an arrested individual is in need of medical care, the person's physical condition can contribute to the seriousness of the violation if the police fail to facilitate access to counsel ( Taylor, supra, at paragraph 40).

Similarly, an arbitrary detention, contrary to section 9 of the Charter, will raise considerably 'high stakes' given the impact of an unjustified state intrusion on a person's liberty interest ( Le, supra at paragraph 153). Note that the length of the detention is not alone determinative of the impact on a person's liberty interest as it must be weighed against the presence or absence of any reasonable basis of justification ( Le, supra at paragraph 155).

Regard should also be had for whether the evidence could have been obtained without the unjustifiable Charter limitation ( Grant, supra, at paragraph 122; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Mellenthin, [1992] 3 S.C.R. 615; R. v. Dersch, [1993] 3 S.C.R. 768). Discoverability is not determinative of the analysis but nevertheless plays a useful role in allowing the court to assess the strength of the causal connection between the Charter breach, the resultant evidence and the impact on the accused's rights ( Grant, supra, at paragraphs 121-122).

(iii) Society's interest in an adjudication on the merits

The third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion ( Grant, supra at paragraph 79). Thus, this inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" ( R. v. Askov, [1990] 2 S.C.R. 1199 at 1219-1220). This line of inquiry is most important where only one of the two preceding lines of inquiry favours exclusion ( Le, supra at paragraph 142). Where both (i) the seriousness of the Charter infringing conduct and (ii) the impact of breach on Charter-protected interests of the accused make a strong case for exclusion of the evidence, this line of inquiry will rarely, if ever, "tip the balance in favour of admissibility" ( Le, supra at paragraph 142).

A judge on a section 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but also the impact of failing to admit the evidence ( Grant, supra at paragraph 79; Collins, supra). Further disrepute will result from admitting evidence that has the effect of depriving the accused of a fair hearing, or "from judicial condonation of unacceptable conduct by the investigatorial and prosecutorial agencies"( Collins, supra at paragraph 31). At the same time, disrepute may also result from the exclusion of evidence and this, too, must be considered ( Collins, Ibid). Indeed, "exclusion of relevant and reliable evidence may undermine the truth-seeking function of the criminal justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute" ( Grant, supra at paragraph 81; see also Strachan, supra at paragraph 52).

However, the concern for truth-seeking is only one consideration under a section 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained ( R. v. Wray, [1971] S.C.R. 272) is inconsistent with the Charter's affirmation of rights and with the wording of section 24(2), which requires a broad inquiry into all the circumstances and not just the reliability of the evidence ( Grant, supra at paragraph 80). Similarly, the fact that the evidence obtained in an unjustifiable limit of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must be weighed against factors pointing to exclusion in order to "balance the interests of truth with the integrity of the justice system" ( R. v Mann, [2004] 3 S.C.R. 59 at paragraph 57; Grant, supra at paragraph 82). A court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial" ( R. v Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.) at paragraph 47).

The importance of evidence to a prosecutor's case is another factor to be considered. The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. On the other hand, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy would be detrimental to the prosecution's case ( Grant, supra at paragraph 83).

While the seriousness of the offence at issue may also be a valid consideration under this line of inquiry, it has the potential to cut both ways. Failure to effectively prosecute a serious charge due to excluded evidence may have an immediate impact on how people view the justice system. However, it is the "long-term repute" of the justice system which is the focus of section 24(2). Indeed, "the short-term public clamour for a conviction in a particular case must not deafen the section 24(2) judge to the longer-term repute of the administration of justice" ( Grant, supra at paragraph 84). Further, "while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high" ( Grant, supra at paragraph 84).

Thus, on the one hand, it may be reasonable to suppose that the more serious the offence in question, the greater the likelihood that the administration of justice will be brought into disrepute by the exclusion of the evidence, particularly where the evidence is crucial to conviction ( Plant, supra; R. v. Borden, [1994] 3 S.C.R. 145; Colarusso, supra); on the other hand, if the admission of the evidence would result in an unfair trial in a given case, then the evidence should be excluded even if the offence is serious ( Collins, supra; Borden, supra; Burlingham, supra). In other words, the courts should not allow the seriousness of the offence and the reliability of the evidence to overwhelm the section 24(2) analysis as, to do so, "would deprive those charged with serious crimes of the protection of the individual freedoms afforded to all Canadians under the Charter and, in effect, declare that in the administration of justice 'the ends justify the means' " ( R. v. Harrison (2008), 89 O.R. (3d) 161 (Ont. C.A.), per Cronk J.A., as adopted in Harrison (SCC), supra at paragraph 40; Cole, supra at paragraph 95). Charter protections must be construed so as to apply to everyone, even those alleged to have committed the most serious criminal offences ( Harrison (SCC), supra, at paragraph 40).

7. Application to different kinds of evidence

The patterns which have emerged under section 24(2) in respect of particular types of evidence are likely to serve as guides to judges faced with section 24(2) applications in future cases ( Grant, supra at paragraph 86).

(i) Statements by the accused

Quite apart from section 24(2), under the common law confessions rule, where a statement is made to a recognized person in authority, regardless of whether its maker is detained at the time, it is inadmissible unless the Crown can establish beyond a reasonable doubt that it was made voluntarily. "Only if such a statement survives scrutiny under the confessions rule and is found to be voluntary does the section 24(2) remedy of exclusion arise" ( Grant, supra, at paragraph 90).

With this in mind, while there is no absolute rule excluding Charter-infringing statements under section 24(2), it is clear that statements obtained in breach of the Charter are generally excluded by the courts on the ground that admission, on balance, would bring the administration of justice into disrepute ( Grant, supra, at paragraph 91). The three lines of inquiry under section 24(2) (described above in Part 6) support the general, although not automatic, exclusion of statements obtained in violation of the Charter ( Grant, supra at paragraphs 92-95). In particular, a court's finding that a statement was obtained in an unjustifiable limit of the section 7 principle against self-incrimination will generally include a determination that the reliability of the statement was outweighed by abusive or coercive state conduct, or that it is unreliable. Both of these considerations will call for exclusion ( R. v. Hart, [2014] 2 S.C.R. 544 at paragraph 242 per Karakatsanis J. (concurring)).

(ii) Bodily evidence

Bodily evidence refers to evidence taken from the body of the accused, such as DNA evidence and breath samples. The majority in Stillman, supra, applying a very broad definition of conscription, had held that bodily evidence is "conscriptive" and that where such evidence is obtained as a result of an unjustifiable Charter limitation, its admission would affect trial fairness. In reaching this conclusion, the majority noted that the security of the body should be recognized as being just as worthy of protection from state intrusion aimed at compelled self-incrimination as are statements. As such, evidence obtained by means of a significant compelled bodily intrusion without consent or statutory authorization was considered, as a general rule, to adversely affect the fairness of the trial ( Stillman, supra at paragraph 93). This resulted in a near-automatic exclusionary rule for bodily evidence which was obtained in a manner contrary to the Charter ( Grant, supra at paragraph 100).

Stillman provided a simple method by which trial judges could approach the trial fairness factor from Collins, supra. It was also consistent with a line of cases finding that the use of any evidence that could not have been obtained "but for" the participation of the accused in the construction of the evidence tends to render the trial unfair ( R. v. Ross, [1989] 1 S.C.R. 3:line-up; Therens, supra: breathalyzer; R. v. Brydges, [1990] 1 S.C.R. 190; Black, supra; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Broyles, [1991] 3 S.C.R. 595; Evans (1991), supra; R. v. Babinski, [1992] 3 S.C.R. 467: confession).

In Grant, supra, such an approach was specifically rejected in favour of a more "flexible, multi-factored approach" which considers "all the circumstances", as required by the wording of section 24(2): Grant, supra at paragraphs 103-107; R. v. Richfield (2003), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Dolynchuk, (2004), 184 C.C.C. (3d) 214 (Man. C.A.); R. v. Banman, (2008), 236 C.C.C. (3d) 547 (Man. C.A.); R. v. S.A.B., [2003] 2 S.C.R. 678. Here, just as with respect to other types of evidence, admissibility should be determined by inquiring into the effect admission may have on the repute of the justice system, having regard to the seriousness of the police conduct, the impact of the Charter limitation on the protected interests of the accused, and the value of a trial on its merits ( Grant, supra at paragraph 107).

While each case must necessarily be considered on its own facts, it would now seem that generally "when an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted." ( e.g., a breath sample, where the method of collection is relatively non-intrusive) ( Grant, supra at paragraph 110; see also generally paragraphs 11, 109-111).

(iii) Non-bodily physical evidence

With respect to non-bodily physical evidence, the degree to which the first inquiry (seriousness of Charter-infringing state conduct) militates in favour of exclusion will depend on the extent to which the conduct is deliberate or egregious. As to the second inquiry (impact of breach on Charter-protected interests of the accused), the question is how seriously the limitation impacted on the accused's interests. The fact that evidence obtained through an invasive search is not itself a bodily sample cannot be seen to diminish the seriousness of the intrusion ( Grant, supra at paragraph 114; Simmons, supra at paragraphs 516-517; R. v. Golden, [2001] 3 S.C.R. 679). The third factor (society's interest in adjudication on the merits) will generally favour admission since reliability issues with physical evidence will not generally be related to the limitation ( Grant, supra at paragraphs 112-115).

(iv) Derivative evidence

Derivative evidence is evidence indirectly obtained as a result of a Charter limit. It does not include the evidence directly obtained through an unjustifiable Charter limit, but rather that which is obtained "as a consequence" of the directly tainted evidence ( Feeney, supra).

"Derivative evidence" is a subset of conscriptive evidence ( Stillman, supra at paragraph 99). More particularly, it is essentially conscriptive "real" evidence. It involves an unjustifiable Charter limit whereby the accused is conscripted against himself (usually in the form of an inculpatory statement) which then leads to the discovery of an item of real evidence. In other words, the unlawfully conscripted statement of the accused is the necessary cause of the discovery of the real evidence ( Stillman, supra).

As noted above, prior to Grant, supra, if the evidence under consideration was classified as conscriptive, that is to say self-incriminating, it was necessary to proceed to the second step of the Collins analysis and determine whether the admission of the evidence would render the trial unfair. Since derivative evidence is a subset of conscriptive evidence, the same approach was generally taken in this context. Where it could be said that the trial's fairness would be affected by admission of such derivative evidence, the evidence was generally to be excluded, although this was not to be an automatic exclusion, and the other factors (seriousness of the violation and the effect of exclusion) were still to be assessed by a court as part of the analysis ( Stillman, supra; R. v. S.(R.J.), [1995] 1 S.C.R. 451).

Generally, prior to Grant, supra, the admission of such conscriptive evidence was not seen as rendering the trial unfair where the impugned evidence would have been discovered in the absence of the unlawful conscription of the accused. There were two principal bases upon which the Crown could establish "discoverability": (1) where an independent source of the evidence existed; (2) where the discovery of the evidence was inevitable This was subject to considerations around the seriousness of the Charter limitation ( Stillman, supra).

As discussed above, this approach to the exclusion of evidence under section 24(2) has now been rejected by the Supreme Court. According to the majority in Grant, the rules on derivative evidence and discoverability were developed under the Collins "trial fairness" rationale, and gave effect to the insight that if evidence would have been discovered in any event, the accused's conscription did not truly cause the evidence to become available. The majority in Grant, supra also noted, with concern, that this "discoverability doctrine" had acquired even greater importance under Stillman, where the category of conscriptive evidence was considerably enlarged. The majority went on to note that since this underlying rationale of "trial fairness" should no longer hold, and since "trial fairness" in the Collins/Stillman sense is no longer a determinative criterion for the section 24(2) inquiry, discoverability should likewise not be determinative of admissibility ( Grant, supra at paragraph 121).

However, it must be noted that discoverability still retains a useful role in assessing the actual impact of the breach on the protected interests of the accused since it allows the court to assess the strength of the causal connection between the Charter-infringing self-incrimination and the resultant evidence. The more likely it is that the evidence would have been obtained even without the statement, the lesser the impact of the breach on the accused's underlying interest against self-incrimination. Conversely, in cases where it cannot be determined with any confidence whether evidence would have been discovered in the absence of the statement, discoverability will have no impact on the section 24(2) inquiry ( Grant, supra, at paragraph 122).

According to the Supreme Court, under the new formulation of the section 24(2) test, where reliable evidence is discovered as a result of a good faith limitation that did not greatly undermine the accused's protected interests, a trial judge may conclude it should be admitted. However, deliberate and egregious police conduct that severely impacts an accused's protected interests may result in exclusion, notwithstanding that the evidence may be reliable ( Grant, supra, at paragraphs 116-127).

8. Review

Provincial appellate courts should not readily interfere with the decisions of trial judges with respect to the application of section 24(2). The test under 24(2) is a "flexible and imprecise balancing exercise" and the question is therefore whether the trial judge considered the right factors ( Mian, supra at paragraph 88). Indeed, in Grant, supra the majority of the Supreme Court noted that where the trial judge has considered the proper factors under section 24(2), appellate courts should accord "considerable deference" to his or her ultimate determination ( Grant, supra at paragraph 86; R. v. Loewen, [2011] 2 S.C.R. 167, at paragraph 13; Côté, supra at paragraph 44). In particular, the determination of whether extenuating circumstances justified police conduct ( Mian, supra) and whether evidence was "obtained in a manner" that unjustifiably limited Charter rights ( R. v. Mack, [2014] 3 S.C.R. 3) are fact-driven determinations that are entitled to deference. Thus, it would still seem to be the case that unless the trial judge makes an unreasonable finding of fact or legal error in applying section 24(2), the issue should not be reopened ( Mellenthin, supra; Grant, supra; R. v. Goncalves, [1993] 2 S.C.R. 3). It follows, of course, that an appellate court may reverse a trial judge who has erred as to the applicable legal principles, ( R. v. Duguay, [1989] 1 S.C.R. 93; Silveira, supra; Stillman, supra) or where the findings of fact of the trial judge are unreasonable ( Belnavis, supra).

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24. (2) Where, in proceedings under section (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

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Article 3: Cell Phones and Canadian Courts

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Article 3: Cell Phones and Canadian Courts

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This article, provided by the Canadian Civil Liberties Association, has a list of recent Canadian cases, all which handle the subject of search and seizure regarding cellular phones. If one is arrested, then their personal cell can be searched if there is reason to believe evidence regarding the cause of their arrest may be found on the device. The expectation of privacy can be argued since cell phones may contain personal and private information which does not involve the arrest. To limit any infringement, a reason and time spent on the cell search must be provided by police.

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Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA's own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA's work check out the In Focus section of our website.
Cell-phones today contain some of our most private and personal information. This has undoubtedly increased our privacy interest in our cell-phones, particularly from unwanted searches from the police. In this article, I present some leading and other recent Canadian cases regarding one's reasonable expectation of privacy in their cell phone and the police's ability to search one's cell phones without a warrant.

Section 8 of the Canadian Charter of Rights and Freedoms provides that: "Everyone has the right to be secure against unreasonable search or seizure."

The s. 8 guarantee, however, is not an absolute right against all searches- s. 8 protects an individual from only those searches deemed to be "unreasonable". In R v Edwards, the Supreme Court of Canada offered the following two-part framework to determine whether s. 8 of the Charter has been violated in a search conducted by the police:[1]

1. First, does the individual have a reasonable expectation of privacy with respect to the item in question under the totality of circumstances?

2. Second, if the individual has a reasonable expectation of privacy, did the police conduct the search reasonably?

The Canadian jurisprudence has typically found that users of cell-phones containing private and personal information have a reasonable expectation of privacy. That said, it is important to note that a determination of whether an individual has a reasonable expectation of privacy proceeds on a case-by-case basis with regard to the totality of circumstances.

In v. Polius (2009), the court found that an individual has a reasonable expectation of privacy in the contents of his or her cell phone since "[t]he information in a cell phone ... may relate to aspects of life that are deeply personal." The information includes photographs, videos, text messages, E-mail messages, call logs, etc.[2]

v. O. (T.) (2010) involved an accused who left his cell phone unattended to charge in the stairwell of an apartment building. The phone was subsequently searched by the superintendent of the building and handed to the police for incriminating evidence. The court found that the fact that the phone was in charging and contained private information indicated that the accused intended to retrieve the phone and therefore the phone was not considered abandoned. The court concluded that the accused had a reasonable expectation of privacy in the cell phone based on the fact that it contained highly personal information.[3]

In v. Artis (2016), the court noted that exclusive access to one's cell phone is not required to establish a reasonable expectation of privacy. Accordingly, the fact that the accused shared his cell phone with another person did not itself preclude the accused from maintaining a reasonable expectation of privacy in the content of his or her cell phone.[4]

Although one has a reasonable expectation to privacy to his or her own cellphone, it was until recently an open question whether one's reasonable expectation of privacy could extend to the text messages that are sent to a recipient and contained on the recipient's phone.

In R v. Marakah (2017), the Supreme Court of Canada ruled that an individual may have a reasonable expectation of privacy in an electronic conversation in some cases, and that text messages that have been sent and received may therefore be protected against unreasonable search and seizure"[5]

In R. v. Jones (2017), heard as a companion case to Marakah, the court considered whether the sender of a text message has a reasonable expectation of privacy in records of that message stored in the service provider's infrastructure. The decision was that there is such an expectation. [6]

In R. v. Fearon (2014), the Supreme Court of Canada maintained that there is a lower expectation of privacy during times of lawful arrest.[7] Accordingly, the Court found that a police officer may search a cell-phone incidental to an arrest where:[8]

The arrest was lawful;

[T]he police have a reason based on a valid law enforcement purpose to conduct the search, and that reason is objectively reasonable. The valid law enforcement purposes in this context are:

1. Protecting the police, the accused, or the public;

2. Preserving evidence; or

3. Discovering evidence, including locating additional suspects, in situations in which the investigation will be stymied or significantly hampered absent the ability to promptly search the cellphone incident to arrest;

The nature and the extent of the search are tailored to the purpose of the search; and

The police take detailed notes of what they have examined on the device and how it was searched.

The Court in Fearon cautioned that the police power to search a cell phone incident to arrest is not a "license to rummage around in the device at will."[9] The Court also held that one's decision not to protect his or her cell phone with a password does not "indicate any sort of abandonment of the significant privacy interests one generally will have in the contents of the phone."[10]

In v. Hiscoe (2013), the Nova Scotia Court of Appeal upheld a trial judge's finding that, given the near month-long delay between the initial arrest and the cell-phone search, a complete "data dump" of all the information contained on the accused cell-phone went beyond the scope of a search incident to arrest. The court upheld the trial judge's finding of a s. 8 violation.[11]

Hiscoe was decided prior to Fearson. Nevertheless, under similar circumstances, the court in v. Powell (2017) also found that the complete "data dump" of all the information contained on the accused cell-phone conducted thirteen days after the initial arrest was beyond the scope of a search incident to arrest.[12]

In v. Hiscock (2016), the court suggested that although a police officer may seize one's cell-phone incidental to arrest, the accused is not required to reveal the passcode and any detail about the password must be obtained voluntarily and consensually.[13]

In R. v. Rogers Communications Partnership (2016), the court held that Canadians have a reasonable expectation of privacy in the records of their cell phone activity. Accordingly, the court held that the Crown's production orders (POs) compelling cell phone providers to provide personal information of cell phone users that have used the cell tower nearby 21 addresses given by the police for investigative purposes was overly broad and infringed s. 8 of the Charter.[14]

In addition to criminal search powers incident to arrest and search powers authorized by warrants, the Canadian Border Service Agency believe they may also search one's cell phone upon an exit or entry at the border pursuant to the Customs Act.[15]They base this on an interpretation of s. 99(1)(a) of the Customs Act which states that an officer may:
(a) at any time up to the time of release, examine any goods that have been imported and open or cause to be opened any package or container of imported goods and take samples of imported goods in reasonable amounts.[16]
In R. v. Gibson (2017), the court held that the definition of "goods" included, for the purpose of s. 99(1)(a) of the Customs Act, data stored in any electronic device, including cell-phones, that is in "actual possession of or in accompanying baggage of traveller at time they arrive at border and commence dealings with customs officers."[17] However, "goods" did not include data that is stored on the cloud or stored remotely on devices that are not in possession of traveller.[18] This definition of a cell phone as a "good" is challenged by the Canadian Civil Liberties Association and others.

1. v. Fearon 2014 SCC 77.

2. v. Hiscoe, 2013 NSCA 48.

3. v. Powell, 2017 ONSC 6482.

4. v. Hiscock (2016), 136 WCB (2d) 502 (NL Prov Ct (Crim Div)).

Footnotes:

1. v. Rogers Communications Partnership, 2016 ONSC 70.

2. v. Gibson, 2017 BCPC 237.

1] R v Edwards, [1996] 1 SCR 128 at para 45 (SCC).

[2] R. v. Polius (2009), 196 CRR (2d) 288 at para 50 (Ont. SCJ).

[3] R. v. O. (T.), 2010 ONCJ 334 at para 42, 46, [2010] O.J. No. 3717.

[4] R. v. Artis, 2016 ONSC 2050 at para 12.

[5] R v. Marakah, 2017 SCC 59.

[6] R. v. Jones, 2017 SCC 60 at para 55.

[7] R. v. Fearon 2014 SCC 77 at para 56.

[8] Citing from original, ibid at para 83.

[11] R. v. Hiscoe, 2013 NSCA 48 at 79.

[12] R. v. Powell, 2017 ONSC 6482 at para 63.

[13] See R. v. Hiscock (2016), 136 WCB (2d) 502 at para 41 (NL Prov Ct (Crim Div)).

[14] R. v. Rogers Communications Partnership, 2016 ONSC 70 at para 31, 42, 43.

[15] Customs Act, RSC 1985 c.1 (2nd Supp) [Customs Act].

[17] R. v. Gibson, 2017 BCPC 237 at para 95.

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Cell Phones And Canadian Courts: Some Recent Cases - CCLA

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Because the Learn section of TalkRights features content produced by CCLA volunteers and interviews with experts in their own words, opinions expressed here do not necessarily represent the CCLA's own policies or positions. For official publications, key reports, position papers, legal documentation, and up-to-date news about the CCLA's work check out the In Focus section of our website.

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Video 2: Unreasonable Search and Seizure

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Video 2: Unreasonable Search and Seizure

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In this video, lawyer Mike Kruze gives some insight on what is considered reasonable versus unreasonable search in Canada. He covers what may be considered reasonable grounds, which police need to conduct a search. He also covers the application process of the omission of evidence found during an unreasonable search since evidence found unreasonably is a breach of privacy. Kruze reiterates that citizens right to privacy is important to exercise in our democratic society.

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Video 1: Search and Seizure: Cases That Should Have Gone to the Supreme Court of Canada, But Didn't!

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Video 1: Search and Seizure: Cases That Should Have Gone to the Supreme Court of Canada, But Didn't!

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This is an episode of a web series, in which Kayla Lee elaborates on a Canadian court case R v Okemow. The evidence found on the location of Okemow, who had committed an indictable offence, was a digital text message. Although Okemow was residing in a private residence, search and seizure was still conducted with digital evidence. This case puts digital and physical privacy into question when conducting a search and seizure.

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Search and Seizure: Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t!

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Video 3: Can The Police Search Your Garbage?

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Video 3: Can The Police Search Your Garbage?

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The video above is a case summary on R. v. Patrick, 2009 SCC 17. It was deemed that section 8 of the charter does not apply to garbage left at the curb. Although one has an expectation of privacy for their own belongings, garbage left at the curb for disposal does not uphold the same expectation since it is seen as “abandoned”.

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Can the police search your garbage? R v Patrick, 2009 SCC 17 Case Summary

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Photo 3: Law Permitting Border Search of Personal Electronic Devices Photo

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Photo 3: Law Permitting Border Search of Personal Electronic Devices Photo

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https://supremeadvocacy.ca/2020/11/17/criminal-law-border-searches-personal-electronic-devices/

Search and seizure at the border applies differently than during regular circumstances. Because one is expecting to be inspected while crossing, the expectation of privacy of a reasonable person is to be lower than if they were carrying about regular life.

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https://www.cbc.ca/news/canada/drug-sniffing-dog-searches-ok-on-reasonable-grounds-1.1870550
Police search dogs are effective in sniffing out evidence, including illicit substances which humans are not able to. A search cannot be conducted with search dogs if there are not reasonable grounds to do so.

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Photo 1: Text Messaging, Expectation of Digital Privacy Photo

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Photo 1: Text Messaging, Expectation of Digital Privacy Photo

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https://ccla.org/our-work/privacy/search-seizure/
For some time the expectation of privacy around cell phones and personal electronics was a grey area in the law. Cases like R. v. Marakah, 2016 defined how searches are to be conducted on personal devices, as well as the expectation of privacy around them. R. v. Marakah, a case where Marakah had been found guilty of indictable offences, had also been texting the plans to a recipient. Marakah had argued that his expectation of privacy and his section 8 rights were infringed upon once a search was conducted on the text recipients phone. The judge determined that once one sends a text message, the recipient can chose to do what they wish with the messages. This means that the sender cannot have an expectation of privacy once the messages are in the recipients phone.